ing with Edmond earl of Lancaster, brother to King Edward the first, maintained an action of dower (after the death of her second husband) by the name of queen of Navarre (c). Wales. 25 Edw. III. The prince of Wales, or heir-apparent to the crown, and Of the Prince of also his royal consort, and the princess royal, or eldest daughter of the king, are likewise peculiarly regarded by the laws. For, by statute 25 Edw. III. to compass or And why, stat. conspire the death of the former, or to violate the chastity of either of the latter, are as much high treason as to conspire the death of the king, or violate the chastity of the queen. And this upon the same reason as was before given: because the prince of Wales is next in succession to the crown, and to violate his wife might taint the blood royal with bastardy: and the eldest daughter of the king is also alone inheritable (12) to the *crown, on failure of [*224 ] issue male, and therefore more respected by the laws than any of her younger sisters (13); insomuch that upon this, united with other (feodal) principles, while our military tenures were in force, the king might levy an aid for marrying his eldest daughter, and her only. The heir appa- By what means rent to the crown is usually made prince of Wales (14) prince of Wales (c) Inst. 50. (12) Upon the inaccuracy of this take the crown at all. Insertion of the word "living" would obviate all difficulty. expression, a gentleman to whose labours I have before adverted proposes the reading "inheritable alone." It is very obvious that the mere phrase in the text implies that only this high lady could inherit the crown, and that younger sisters must be considered either as parceners or as excluded; whereas the proposed reading would, in a great degree, remove the ground for the implication; but, still, the strict meaning of the text, and even of the amendment, would leave it doubtful whether younger daughters would take as parceners, or whether they could (13) This statute perhaps was not and earl of Chester made. and earl of Chester (15) by special creation, and investiture (16); but, being the king's eldest son (17), he is by mation of Mary) being heir presump. tive to the crown. 4 Hume, 113. Edward, son of Edward the first, became, by the death of his eldest brother Alfonso, heir to the crown, and from that time this honour has been appropriated only to the eldest sons or eldest daughters of the kings of England. Cн. (15) The earldom of Chester was once also a principality, erected into that title by parliament in 21 Rich.II., wherein it was also ordained that it should be given to the king's eldest son. But that whole parliament was repealed in the first of Hen. IV., although the earldom hath usually been since given with the principality of Wales. Seld. Tit. of Hon 2, 5, § 1. Сн. having enumerated those princes who had been dukes of Cornwall before his time, among whom he reckons Prince Arthur, proceeds to say, "Neither was King Hen. VIII., in the life of his father, after the death of Prince Arthur, his brother, by force of the said creation, duke of Cornwall; for, although he was the sole son and heir apparent of Hen VII., yet, forasmuch as he was not the first-begotten son, he was not within the said limitation; for Prince Arthur was his first-begotten son." But, although, from this, it is manifest that a duke of Cornwall must be the first-begotten son of a king, yet it is not necessary that he should be born after his father's accession to the throne. This is a strange species of inherit(16) That is, by letters patent under ance, and perhaps is the only mode the great seal of England. - Cн. (17) The learned commentator seems to have adopted what I am inclined to think is an error, even in the learned and accurate Selden, who says, "not only the first-born sons of the kings of England, but the eldest living also, are dukes of Cornwall." Tit. of Hon. 2, c. 5, § 29. And he refers to the prince's case, in 8 Coke's Reports. But the observations in that report, as well as the words of the statute, limit the dukedom of Cornwall to the firstbegotten son of a king of England, and to him only. The words of the statute are, habendum et tenendum eidem duci et ipsius et haredum suorum regum Angliæ filiis primogenitis, et dicti loci ducibus in regno Angliæ hæreditarie successuris. And Lord Coke, after * [For more upon the general title, see the printed parliament rolls, 5 of descent which depends upon the authority of a statute. In the prince's case, reported by Lord Coke, the question was, whether the original grant to Edward the Black Prince, who was created in the 11th of Edward III. duke of Cornwall, and who was the first duke in England after the duke of Normandy, had the authority of parliament, or was an honour conferred by the king's charter alone? If the latter, the limitation would have been void, as nothing less than the power of parliament can alter the established rules of descent. But, notwithstanding it is in the form of a charter, it was held to be an act of the legislature. It concludes, per ipsum regem et totum concilium in parliamento."-Сн. H. IV. nu. 22, and 38 H. VI. nu. 29.] inheritance duke of Cornwall, without any new creation (d) (18). The rest of the royal family may be considered in two of the rest of different lights, according to the different senses in which the royal family. the term royal family is used. The larger sense includes all those who are by any possibility inheritable to the crown. Such, before the revolution, were all the descendants of William the Conqueror, who had branched into an amazing extent, by intermarriages with the ancient nobility. Since the revolution and act of settlement, it means the protestant issue of the Princess Sophia; now comparatively few in number, but which, in process of time, may possibly be as largely diffused. The more con- Who, in the fined sense includes only those, who are within a certain sense, so condegree of propinquity to the reigning prince, and to whom, sidered, and therefore, the law pays an extraordinary regard and respect; but, after that degree is past, they fall into the rank of ordinary subjects, and are seldom considered any farther, unless called to the succession upon failure of the nearer lines. For, though collateral consanguinity is regarded indefinitely, with respect to inheritance or succession, yet it is and can only be regarded within some certain (d) 8 Rep. 1. Seld. Tit. of Hon.2,5. (18) The king's eldest living son and heir-apparent takes, under the grant ann. 11 E. III. the dukedom of Cornwall, and retains it during the king his father's life: on the accession of such duke to the crown, the duchy vests in the king's eldest son living, and heir-apparent. But, if there be no eldest son and heir-apparent, the dukedom remains with the king, the heir-presumptive in no case being entitled to the dukedom. See 1 Ves. 294. Collin's Bar. 148. The rule may be shortly stated: until a prince be born, the king is seized; but when VOL. I. born, the prince becomes seized in fee Z more confined how. the ancient law. St.31 H. VIII. c. 10, one of precedency limits, in any other respect, by the natural constitution of things and the dictates of positive law (e). The younger sons and daughters of the king, and other branches of the royal family, who are not in the immeRegarded by diate line of succession, were therefore little farther regarded by the ancient law, than to give them to a certain degree precedence before all peers and public officers, as well ecclesiastical as temporal. This is done by the sta[*225] tute 31 Hen. VIII. c. 10, *which enacts that no person, except the king's children, shall presume to sit or have place at the side of the cloth of estate in the parliament chamber; and that certain great officers therein named shall have precedence above all dukes, except only such as shall happen to be the king's son, brother, uncle, nephew, (which Sir Edward Coke (f) explains to signify grandson or nepos), or brother's or sister's son. Therefore, after these degrees are past, peers or others of the blood royal are entitled to no place or precedence except what belongs to them by their personal rank or dignity: which made Sir Edward Walker complain (g), that by the hasty creation of Prince Rupert to be duke of Cumberland, and of the Earl of Lenox to be duke of that name, previous to the creation of King Charles's second son, James, to be duke of York, it might happen that their grandsons would have precedence of the grandsons of the duke of York. The king's chil Indeed under the description of the king's children his dren computed grandsons are held to be included, without having recourse his dren, to Sir Edward Coke's interpretation of nephew; and therefore when his late majesty King George II. created his grandson Edward, the second son of Frederick prince of Wales deceased, duke of York, and referred it to the house of lords to settle his place and precedence, they certified (h) that he ought to have place next to the late duke of Cumberland, the then king's youngest son; and that he might have a seat on the left hand of the cloth of estate. But when, on the accession of his present majesty, those royal personages ceased to take place as the children, and ranked only as the brother and uncle, of the king; they also left their seats on the side of the cloth of estate: so that when the duke of Gloucester, his majesty's second brother, took his seat in the house of peers (i), he was placed on the upper end of the earl's bench (on which the dukes usually sit) next to his royal highness the duke of York. And in 1718, upon a question referred to all the judges by King George I., it was resolved, by the opinion of ten against the other two, that the education and care of all the king's grandchildren while minors did belong of right to his majesty, as king of this realm, even during their father's life (k) (19). But they all agreed, that the care and approbation of their marriages, when grown up, belonged to the king their grandfather. And the judges (e) See Essay on Collateral Consanguinity, in Law Tracts, 4to. Олоп. 1771. 4 Inst. 362. (g) Tracts. p. 301. (i) Lord's Journ. 10 Jan. 1765. (19) The authorities and arguments of the two dissenting judges, Price and Eyre, are so full and cogent, that if this question had arisen before the judges were independent of * Whether these most learned persons might have been open to the insinuation conveyed by Mr. Christian's note, is a question which our legal biography, as well as our more general history, too strongly answer in the affirmative. Prerogative judges might, indeed, afflict a na tion for a time; but, superadded to their own regard to character, the judges may congratulate themselves that, as to their being placed above suspicion, the public press is their best guardian, as well as the people's. Yet a popular judge cannot be a sound (k) Fortesc. Al. 401-440. the crown, one would have been inclined to have suspected the sincerity of the other ten, and the authority of the decision. See Harg. St. Tr. 11 vol. 295.*-Сн. or an useful one. If there be law ap. plicable to the case, little is left to a judge, save honestly to apply it: it is when he wrests it, to serve temporary purposes, whether ministering facilities to the gratification of his own ambition of promotion or of public applause, that any judge, whether prerogative or popular, becomes a curse instead of a benefit to the community. I do not wish I could dissent from Eyre and Price, JJ. although I should thereby have numbers and authority on my side. There is infinite reason given for the opinions of the two. |